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Category: Judicial Activism (for Public Benefit)

Lily Thomas Vs Union of India and Ors on 10 Jul 2013

Posted on November 1, 2020 by ShadesOfKnife

Supreme Court has struck down the Section 8(4) as ultra vires to the Constitution which was in the following fashion,

(4) Notwithstanding anything in sub-section (1), sub-section (2) and sub-section (3) a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.

From Paras 19 and 20,

19. The result of our aforesaid discussion is that the affirmative words used in Articles 102(1)(e) and 191(1)(e) confer power on Parliament to make one law laying down the same disqualifications for a person who is to be chosen as member of either House of Parliament or as a member of the Legislative Assembly or Legislative Council of a State and for a person who is a sitting member of a House of Parliament or a House of the State Legislature and the words in Articles 101(3)(a) and 190(3)(a) of the Constitution put express limitations on such powers of the Parliament to defer the date on which the disqualifications would have effect. Accordingly, sub-section (4) of Section 8 of the Act which carves out a saving in the case of sitting members of Parliament or State Legislature fromthe disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which thedisqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond the powers conferred on Parliament by the Constitution.

20. Looking at the affirmative terms of Articles 102(1)(e) and 191(1)(e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101(3)(a) and 190(3)(a) of the Constitution expressly prohibitParliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature.Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the Act and accordingly subsection(4) of Section 8 of the Act is ultra vires the Constitution.

From Para 23,

…

Sitting members of Parliament and State Legislature who have already been convicted for any of the offences mentioned in sub-section (1), (2) and (3) of Section 8 of the Act and who have filed appeals or revisions which are pending and are accordingly saved from the disqualifications by virtue of sub-section (4) of Section 8 of the Act should not, in our considered opinion, be affected by the declaration now made by us in this judgment.

…

However, if any sitting member of Parliament or a State Legislature is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and by virtue of such conviction and/or sentence suffers the disqualifications mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act after the pronouncement of this judgment, his membership of Parliament or the State Legislature, as the case may be, will not be saved by subsection (4) of Section 8 of the Act which we have by this judgment declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and /or sentence.

Lily Thomas Vs Union of India and Ors on 10 Jul 2013

Citations : [2013 ABR 6 236], [2013 AD SC 10 655], [2013 AIR SC 2662], [2013 AWC SC 6 5458], [2013 BOMCR 5 261], [2013 CGLRW SC 2 339], [2014 CLT SC 117 284], [2013 JLJR 3 351], [2013 JT SC 9 419], [2013 KARLJ 5 1], [2013 KLJ 3 284], [2013 KERLT 3 296], [2013 LW 4 857], [2013 MLJ 5 463], [2013 OLR 2 941], [2013 PLJR 3 261], [2013 RCR CIVIL 3 713], [2013 SCALE 8 469], [2013 SCC 7 653], [2013 SCC L&S 7 811], [2014 WBLR SC 1 69], [2013 SCC CIV 3 678], [2013 SCC CRI 3 641], [2013 SCC L&S 2 811], [2013 SCC ONLINE SC 603], [2013 GUJ LH 2 408], [2013 GUJ LR 3 2209], [2013 ILR KERALA 3 203], [2014 CUT LT 117 284]

Other Sources :

https://indiankanoon.org/doc/63158859/

https://www.casemine.com/judgement/in/5609af2ee4b0149711415be4

Supreme Court Landmark Judgment- Lilly Thomas v. Union of India

Posted in Judicial Activism (for Public Benefit) | Tagged 2-Judge (Division) Bench Decision Catena of Landmark Judgments Landmark Case Legal Procedure Explained Lily Thomas Vs Union of India and Ors Prospectively Applicable Law Public Interest Litigation Reportable Judgement Representation of People Act 1951 Sec 8(4) - Disqualification on conviction for certain offences. | Leave a comment

Litigation by Ashwini Kumar Upadhyay

Posted on October 24, 2020 by ShadesOfKnife

Ashwini Kumar Upadhyaya ji has launched a lot of Public Interest Litigation and since the entire collection is not available in a single place, the following is a curated list for interested folks.

 

Initiated between 1986-1990

 

Initiated between 1991-1995

 

 

 

Initiated between 1996-2000

 

Initiated between 2001-2005

 

 

Initiated between 2006-2010

 

Initiated between 2011-2015

 

 

Initiated between 2016-2020

  1. Writ Petition(s)(Civil) No(s). 699/2016 : Attacking the pending criminal cases against the elected representatives of people (MPs and MLAs) in various Courts of India and expedite and disposed them on war-footing.
  2. Writ Petition (Civil) No. 329/2019 : The Section 31 of the CrPC, which provides that a convict can serve varying jail terms simultaneously for several offences, should not be made applicable to the convicts in heinous cases under special laws such as “the Unlawful Activities (Prevention) Act (UAPA), the Prevention of Corruption Act (PCA), the Prohibition of Benami Property Transactions Act, the Prevention of Money Laundering Act (PMLA), the Foreign Contribution (Regulation) Act (FCRA), the Black Money and Imposition of Tax Act, and Fugitive Economic Offenders Act,.

 

 

Initiated between 2021-2025

Posted in Judicial Activism (for Public Benefit) | Tagged Catena of Landmark Judgments Litigation by Ashwini Kumar Upadhyaya Public Interest Litigation | Leave a comment

Neeraj Shankar Saxena and Ors Vs Union of India and Ors

Posted on October 14, 2020 by ShadesOfKnife

In this case, Supreme Court issued notice on a plea challenging the constitutional validity of the National Commission for Minorities Act 1972 and various governmental schemes for the religious minorities at the expense of taxpayer money.


Here is the Petition copy.

Neeraj Shankar Saxena and Ors Vs Union of India and Ors - Petition

On 2020-01-20

Neeraj Shankar Saxena and Ors Vs Union of India and Ors on 20 Jan 2020

https://www.barandbench.com/news/litigation/hindus-suffering-for-being-born-in-majority-plea-in-sc-challenges-constitutionality-of-minorities-commission-welfare-schemes-for-religious-minorities

https://www.indialegallive.com/constitutional-law-news/supreme-court-news/sc-issues-notice-plea-challenging-constitutionality-minority-commission-welfare-schemes-religious-minorities/

https://www.livelaw.in/top-stories/no-safeguards-for-non-islamic-properties-from-inclusion-of-waqf-plea-in-sc-challenges-the-constitutional-validity-of-waqf-act-1995-162164

Posted in Judicial Activism (for Public Benefit) | Tagged Neeraj Shankar Saxena and Ors Vs Union of India and Ors Public Interest Litigation | Leave a comment

PIL – Dowry Givers should be prosecuted

Posted on June 15, 2020 by ShadesOfKnife

After losing out (didn’t lose the case but didn’t get opportunity to argue in-person) in an earlier attempt here, I decided to take Writ Petition route as I am one of the affected person of this biased implementation of a convoluted interpretation of section 7(3) of Dowry Prohibition Act 1961 (amended in 1986). Also, decided to decentralize my PIL prayers.

So picked up this prayer from earlier attempt and worked on writing the WP.

Issue a Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus to Respondents, such that there is no ambiguity to them whether to prosecute the Dowry givers under section 3 of DP Act read with section 7 of DP Act and no discrimination is made between Dowry Giver and Dowry Taker, under Section 3(1) of DP Act, in similar fashion as that of made by Bangladesh.


Key Point

Shouldn’t all Dowry givers be booked and prosecuted as per section 3 of Dowry Prohibition Act 1961 (as amended from time to time) or not?

 

Arguments – Counter Arguments

 

Another simple point from the Bare Act itself.

 

Prayer

Prosecute Dowry Givers u/s 3(1) without protecting them u/s 7(3) = Article 14 and 21 compliance

Strike down words ‘Gives’ and ‘abets to give’ from section 3(1) = ultra-vires to Article 14 and 21 compliance and contrary to legislative intent


All the cited case laws are listed here.

  • Malreddy Ramachandra Reddy Vs C. Vanaja Reddy and Ors on 16 April 2003 (AP HC)
  • Ram Gopal Sah Vs State Of Jharkhand on 03 December 2008 (Jharkhand HC)
  • Pooja Saxena vs State and Anr on 20 October 2010 (Delhi HC)
  • Yashpal Kumar Vs Bhola Nath Khanna and Anr on 1 March 2012 (Delhi HC)
  • Kudarathullah Khan Vs The State of Andhra Pradesh on 21 March 2012 (AP HC)
  • Viral Dhulia Vs Virag Dhulia on 25 July 2013
  • Chitranjan Dev Goel and Ors Vs State (Nct of Delhi) and Ors on 21 March 2016

 

 


 

Posted in Judicial Activism (for Public Benefit) | Tagged DP Act 3(1) - Giving Taking or Abet to Give or Take is Crime DP Act 7(3) - Protection for Aggrieved Person from Prosecution PIL - Dowry Givers should be Prosecuted | Leave a comment

PIL Petition to Effectively Reduce False Dowry Cases

Posted on February 26, 2020 by ShadesOfKnife

If you have read through the preparation for this PIL here, the following are the documentation I created for this PIL and related Court Order and other titbits.

Here are the Main Prayers:

It is respectfully prayed that this Honorable Court may be pleased to issue the following Writ Reliefs in the interest of justice, equity and in accordance to protect the Articles 14 and 21 of the Constitution of India of citizens as laid out in above section titled, “IV.GROUNDS/FACTS IN DETAIL, AS NECESSARY TO APPRECIATE THE CONTENTION OF PIL” on Urgent Basis to abate the violation of fundamental rights from eternal perpetuity.

Further, it is pointed out that in view of the Conflicting views passed by different Fora regarding the said provisions of the impugned enactments, the interference of this Court is indispensable to ensure certainty in the lives of citizens at the receiving end and consistency in the approach of the Legislature and Judiciary towards granting fair trial to the people.

  1. Issue a Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus to Respondents, to link various marriage enactments of India with Dowry Prohibition Act, 1961, by making Marriage Registration certificate as a mandatory document for Proof of Marriage, to file a case under any provision of DP Act.
  2. Issue a Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus to Respondents, to amend the application forms used for Registration of Marriages in all States and Union Territories to
    • capture if any presents were given to either bride or groom before/during/after the marriage ceremony as mandated in Dowry Prohibition Rules (Maintenance of Lists) of 1985.
    • declare that there is no dowry given/taken/demanded by either side of bride or bride groom, before/during/after the marriage ceremony.
  3. Issue a Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus to Respondents, such that there is no ambiguity to them whether to prosecute the Dowry givers under section 3 of DP Act read with section 7 of DP Act and no discrimination is made between Dowry Giver and Dowry Taker, under Section 3(1) of DP Act, in similar fashion as that of made by Bangladesh.
  4. Issue a Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus to Respondents, to ensure all the necessary awareness is created at all institutions where Marriages are performed in regards to the Dowry Menace and the legal rights of parties.
  5. Issue a Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus to Respondents, to ensure all the necessary sensitization is created at all Fora where Marriages are registered in regards to the Dowry Menace and the legal rights of parties.
  6. Issue a Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus to Respondents, to ensure that each Marriage so registered with Marriage Registrars or similar Institutions give out free literature such as a booklet, pertaining to existence of Dowry Laws & relevant provisions of Indian Penal Code 1860.
  7. Issue a Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus to Respondents, to ensure that the Name of the enactment be suitably amended from Dowry Prohibition Act, to reflect and include all words that align to the demand for money or property under various religions, thereby making it not perceived as an enactment specific to only Hindu religion alone.
  8. Issue a Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus to Respondents, to ensure that in all criminal cases filed under Dowry Prohibition Act 1961 and 498A I.P.C. or any other penal code dealing with Dowry-related crime, where the accused person/persons are acquitted on merits, the Investigating officers are prosecuted for launching false prosecution suo moto, by the same Magistrate who passed an order of acquittal.

In the Alternative,

Strike down appropriately and sufficiently, all relevant sections of DP Act, so as to make Giving of Dowry as no more a crime in India as all the persons who give Dowry are never going to be prosecuted at all, in the view of the bar imposed by Section 7(3) DP Act.

And here is the Petition (only petition; There are umpteen additional affidavits that I had to file in support of my petition)

HMA DP3 PIL v3.0 (To Upload)

 

Rejection Order Passed by the Committee of Registrars:

Report of Committee of Registrars

 

Timeline for this PIL:

 

In November 2019, PIL was filed. Lots of learnings.

In December 2019, Interview was conducted by Registrar Judicial.

In January 2020, above Order was passed by the Registrar Judicial, by lying that I never appeared Party-in-person in any Court. (I have evidence to disprove this)

In February 2020, I withdrew the PIL, as I was not permitted to argue my PIL case, Party-in-person.

 

Next Steps

Since PIL route has been explored and all nuances in filing understood, I will explore the WP route now and later on explore Letter Petitions. And in more than one Petitions per unique prayer. Continue here.

Posted in Judicial Activism (for Public Benefit) | Tagged PIL - Effective Solution to Reduce False Dowry Cases | Leave a comment

UGC Notification Reg. Refund of Fees and Non-Retention of Original Certificates

Posted on November 8, 2019 by ShadesOfKnife

Here are UGC Notifications Reg.:Refund of Fees and Non-Retention of Original Certificates Published on 02-11-2018

UGC-Notice-reg-Fees-refund-Eng

Original Source: https://www.ugc.ac.in/ugc_notices.aspx?id=2176


Earlier notification regarding Refund of Fees Published on 12-01-2016

UGC-Letter-reg-non-refund-of-fees-Annexture-I

Original Source: https://www.ugc.ac.in/ugc_notices.aspx?id=1270


Reproduced in accordance with Section 52(q) of the Copyright Act 1957 (India) from judis.nic.in, lobis.nic.in, indiacode.nic.in and other Indian High Court and District Court Websites such as ecourts.gov.in

Posted in Judicial Activism (for Public Benefit) | Tagged UGC Notification Reg Refund of Fees and Non-Retention of Original Certificates

Ban on Plastic Products by Rajasthan HC

Posted on September 30, 2019 by ShadesOfKnife
Ban on Plastic Products - Rajasthan HC
Posted in Judicial Activism (for Public Benefit) | Tagged Plastic Ban

Why ditch your Advocate? Why go Party in person (PIP)?

Posted on September 9, 2019 by ShadesOfKnife

Someone asked me this question today on WhatsApp.

My response.

Posted in Judicial Activism (for Public Benefit) | Tagged Party In Person Series

Effective Solution to Reduce False Dowry Cases. What?

Posted on September 7, 2019 by ShadesOfKnife

After research of nearly 10 months from October 2018, my first PIL has taken a very good shape and has received constructive review comments/ positive feedback from various eminent MRAs and Organizations to include more relevant aspects to strengthen the prayers of the PIL. That feedback is being integrated into the PIL petition.

Meanwhile, the ideation for second PIL has begun few days back and on this page I will present the current status of the contention points being raised in this PIL supported by the legal grounds.


Abbreviations

PIL : Public Interest Litigation

PMD Act: The Parsi Marriage and Divorce Act, 1936

HM Act: Hindu Marriage Act 1955

SM Act: Special Marriage Act 1954

DP Act: Dowry Prohibition Act 1961


Background (Once Upon A Time)

Parsi Marriage and Divorce Act, 1936

This enactment

Hindu Marriage Act, 1955

The sum total essence of the Hindu marriage traditions and customs are legalized under the Hindu Marriage Act, 1955, the inaugural bare act passed on 18 May, 1955 here. This page also has the latest amended Hindu Marriage Act, 1955 modified as on 14 May, 2019.

Interesting thing to note is there is not one instance of word DOWRY in the entire Hindu Marriage Act !!! VERY CRUCIAL POINT

Special Marriage Act, 1954

This Act caters to a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce.

Again not one instance of word DOWRY in the entire Special Marriage Act !!! VERY CRUCIAL POINT

The Dowry Prohibition Act, 1961

In India, like many other countries like Bangladesh, there is a societal menace called as Dowry. There were (and are) many crimes happening around the central issue of Dowry. Dowry Demand, Dowry harassment, Dowry Death etc. Since such societal problems are to be dealt at the highest level, Legislature jumped in to outlaw/criminalize all aspects of and around Dowry in India. Thus came the Dowry Prohibition Act, 1961. Read the inaugural Bare Act as well as the latest amended one as on 3rd December, 2018 here.

Along came the Central Rules to support the Act styled as the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985 by clicking here.

There there were Two amendments to this Act one in 1984 here and another in 1986 here.

On a comparable note, even our friendly neighbor, Bangladesh also suffers from Dowry issues in their society and they have also adopted a law prohibiting all aspects of and around Dowry here and they recently, in 2018, came out with a ground-breaking amendment to the Dowry Prohibition Act. Read the same here. Unfortunately, no english version with me.

The States have passed State Rules u/s 10(1) of the Central Act. All available are posted here.


Summary of Offences from DP Act (The AS IS)

Salient Features and Criminalized/De-criminalized acts from DP Act, along side their Legislature-proposed punishment and fine.

  1. Section 3-Penalty for giving dowry (shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more) VERY CRUCIAL POINT
  2. Section 3-Penalty for taking dowry (shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more)
  3. Section 4-Penalty for demanding dowry (he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees)
  4. Section 4A-Ban on advertisement (shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to five years, or with fine which may extend to fifteen thousand rupees)
  5. Section 6-Dowry to be for the benefit of the wife or her heirs. (shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years or with fine which shall not be less than five thousand rupees, but which may extend to ten thousand rupees or with both)
  6. Section 7-Cognizance of offences (Notwithstanding anything contained in any law for the time being in force a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act) VERY CRUCIAL POINT
  7. Section 7-Cognizance of offences (Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to any offence punishable under this Act) No Limitation Sections apply from CrPC !!!  VERY CRUCIAL POINT
  8. Section 8A-Burden of proof in certain cases.—(Where any person is prosecuted for taking or abetting the taking of any dowry under section 3, or the demanding of dowry under section 4, the burden of proving that he had not committed an offence under those sections shall be on him) This doesn’t absolve Prosecution from establishing that Dowry is given in the first place, then the Proof of burden shifts to Accused to prove that the Money taken is NOT towards Dowry.

Now, What is the Contention Point? (The Why this PIL)

Despite making a law in 1961, prohibiting above acts, along side the Legislature proposed sanctions of punishment and fine, Dowry Menace in India has NOT come down a bit.


Sources for above conclusion and innovative and proposed (meaning not-yet-implemented) solutions till date

NCRB Data Goes here.

  1. Per the Statistical Data from National Crime Records Bureau (hereinafter ‘NCRB’), the report titled, “Crime in India – 2016[1]”, Table 1.3/SLL Crimes – 2014-2016, there were 10050, 9894 and 9683 incidents reported against DP Act for the years 2014, 2015 and 2016 respectively. State-wise breakup of incidents reported under DP Act, for year 2016 given in Annexure – C.
  2. Similarly, the recently released data for the year 2017 in the report titled, “Crime in India – 2017[2]” Table 1.3/SLL Crimes – 2015-2017, 10189 incidents were reported against DP Act. State-wise breakup of incidents reported under DP Act, for year 2017 given in Annexure – D.
  3. In all of these 9683 cases filed in 2016 or the 10189 cases filed in 2017, across the length and breadth of our great nation, not one of the Dowry giver was prosecuted. When there is crime comprising of two persons, how can only one person in the crime be prosecuted against and the other person let go Scott-free is first question this petitioner raises.
  4. Per the NCRB report (supra), table titled, Table 3A.9/ Disposal of Persons Arrested For Crime Against Women (Crime Head-wise) – 2016, of the total people 25,063 arrested in 2016 of which 20,400 were charge sheeted, not one of them is a Dowry giver! Moreover, the Acquittal rate in 2016 was 84.7%, which implies that many motivated and/or ill-investigated cases are put to Courts. Similarly, from 2017 statistics, it can be observed that, of the total people 19,068 arrested of which 17,789  were charge sheeted (a 93.29% rate of charge-sheeting), not one of them is a Dowry giver! The Acquittal rate even though reduced from 2016, was at 76.8%, which implies that many motivated and/or ill-investigated cases are put to Courts!!

Law Commission Reports (if any) go here.

Compulsory Registration of Marriages, 270th Report of Law Commission of India, published on 4 July, 2017

Judgments crying about continuing/increasing Dowry Menace go here.

Eminent Think tanks/Feminist rotting sinks’ conclusions go here.

 


My Solution (The How; The TO BE; The Eureka)

FIRST ATTACK VECTOR

My belief is that majority of false dowry cases aver that Dowry is given during/before the marriage and that is exactly the first specific aspect this PIL targets, by linking the Registration of Marriage with The Section 2 of DP Act.

As mentioned in Background section, Marriages, irrespective under which custom or tradition performed, get legal status only when they are registered with Registrar of Marriages. Section 8 of HM Act (Registration of Hindu Marriage) provides for this purpose. Similarly, under SM Act, Section 15 provides for the registration of marriages. In PMD Act, Section 6 provides for registration of marriage.

The Government also made registration of all marriages compulsory (Source here).

Now, a careful perusal of the Form-A (Application for registering a marriage with a Registrar of Marriages) indicates that there are some fields that are directly associated with the HM Act. Case in point here is some columns/fields same or similar to below.

  1. Whether Bride or Bridegroom is a divorcee
  2. If yes, Date of the decree in the Court of the first instance
  3. Whether period of one year has elapsed from the date noted in the above Col to the date of the application

The above fields are in the FORM-A because as part of FULL-Disclosure, both parties declare about their status, if divorced and if they can marry. See Section 15 of HM Act which is the source of these fields. Same is covered in Section 30 of SM Act and Section 4 of PMD Act.

Similarly, other fields on this form are in compliance of various provisions of HM Act or SM Act or PMD Act.

If Divorce aspect can be linked to this form via HM, SM and PMD Acts, the Dowry aspect can and should be linked to this form via DP Act and the DP Rules.

A) A new field/column to be introduced into the Marriage Application Form-A such as:

Whether any lists of presents given to bride/groom made as per Rules 2(1)/2(2) as prescribed in the the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985 until the date of the application?

Documents to submit to Registrar:

Duly filled and signed Original lists of presents given to bride/groom made as per Rules 2(1)/2(2) as prescribed in the the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985.

B) A new field/column to be introduced into the Marriage Application Form-A such as:

Whether any dowry given to bride/groom or parents of bride/groom or guardian/relative of the bride/groom as prescribed in Section (2) of the the Dowry Prohibition Act, 1961 until the date of the application?

Documents to submit to Registrar:

Duly filled in declaration/affidavit admissible in a Court

C) A new field/column to be introduced into the Marriage Application Form-A such as:

Whether any demand was made for dowry by the bride/groom or parents of bride/groom or guardian/relative of the bride/groom until the date of the application?

Documents to submit to Registrar:

Duly filled in declaration/affidavit admissible in a Court

 

SECOND ATTACK VECTOR

Section 3 of DP Act requires amendment in the view of the bar imposed by Section 7(3) DP Act.

 

Section 3. Penalty for giving or taking dowry.—

(1) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more:
Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years.
(2) …..

 

Section 7. Cognizance of offences.—

(1) …..
(2) …..
(3) Notwithstanding anything contained in any law for the time being in force a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.

By a combined reading of provisions of Section 3 with Section 7 as highlighted above, a person who gives dowry can never be prosecuted by Courts. Legislature, in their immense wisdom, may have come to the conclusion, the dowry-giver (In 99.9% of Dowry cases, Dowry-giver is the person aggrieved and the one who gives witness statement to Police u/s 161 CrPC) is an innocent person who cannot marry off his girl child, without giving dowry. Moreover, there is not one single case in India where a person was convicted and imprisoned for giving dowry.

Unless the Legislature meant any person who becomes aware of the Dowry being exchanged, becomes aggrieved by such offence, and such Person/Good Samaritan shall not be subjected to a prosecution under this Act. If it is the former understanding, as held in landmark judgments, that the one person coming forward complaining about Dowry is the father/relative of bride, then that person shall not be subjected to any prosecution, that, to my limited knowledge of DP Act and its Objects and Reasons, is a utterly wrong interpretation. If we consider that the later interpretation is what the Legislature had in mind, then that is correct interpretation of Law. This is also in sync with Section 7(1)(b) which postulates that, a complaint by a person aggrieved by the offence is NOT same as parent or other relative of such person. Here the person could be the bride or groom themselves.

(b) no court shall take cognizance of an offence under this Act except upon—
(i) ….
(ii) a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognised welfare institution or organisation;

A third-party to both parties/families coming together in a said marriage can be excluded from prosecution in case he/she makes a complaint. Exactly, as is held in case of Accidents, a good samaritan who helps accident victims with no fear of legal prosecution.

It is clear that person mentioned in entire Section 7 refers to either bribe or groom only. A father or relative of bride who comfortably/under duress gives dowry to other party, shall be liable to prosecution u/s 3 of DP Act, as much as the receiver of dowry. [From Collective reading of Section 7(1)(b) and Section 7(3)]

Under the above circumstances, the words ‘gives’ and ‘the giving’ are otiose and have become infructous and ripe for omission by Legislature and in the interest of Justice and in the spirit of Doctrine of Separability, striking off by Hon’ble Courts.

 

THIRD ATTACK VECTOR

Section 2 of DP Act provides for perpetualily to the definition of Dowry by stating,

Section 2. Definition of “dowry”.—In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly—
(a) …
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person; at or before or any time after the marriage, in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

This perpetuity is disturbed by the time limits setup by Various State Rules framed by the State Legislatures u/s 10(1) of DP Act as well as Section 7 of DP Act.

AP DP Rules 1998 has Rule 5. which states:

5. Complaint:-
(a) ….
(b) ….
(c). Any complaint shall be made either on the demand of dowry or accepting dowry within a period of one year.

 

Section 7. Cognizance of offences.—

(1) ….
(2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to any offence punishable under this Act.

 

Another rule is as follows:

10. Time for settlement of disputes: – Any offence under section 3 and section 4 or any dispute under section 6 of the Act shall be filed before expiry of one year and the same shall be finalized within two years from the date of filing.

Under the above circumstances, either the time-limiting State rules that are in violation of the section in DP Act deserves striking down and the Section needs to disallow perpetuity,


How is this Solution supported (The Thought Process)

A detailed psycho-analysis of the psyche of people who deal in Dowry is performed resulting in the following “What-if” scenarios and their consequences.

1. What if the father of bride gives dowry (Sec 3 of DP Act) but lies on the Form-A?

This should be an alert to the father of groom of possible false criminal cases u/s cruelty to wife for dowry harassment (498A IPC) and taking dowry (Sec 3 of DP Act) on immediate and distant family members and separately-living and abroad-residing relatives

2. What if the father of groom demands dowry (Sec 4 of DP Act) but lies on the Form-A?

This should be an alert to the father of bride of possible future demands for more dowry

3. What if the father of groom takes dowry (Sec 3 of DP Act) but lies on the Form-A?

This should be an alert to the father of bride of possible future demands to bring more dowry

4. What if the father of groom  as well as the bride together lie on the Form-A, even in reality there is Dowry exchanged between them?

Both of them will have the consciousness that they lied on Legally admissible documents and a constant fear of no legal protection, What-If in the event there is a disruption to their wards relationship. Moreover, they will be more motivated to safe guard their side interest, by ensuring some kind of solid evidence exists (or created/manufactured) for giving/taking of dowry.


More What-If concerns, decimated:

1. What if there is a claim of dowry after the statutory limit as prescibed by the State Rules under DP Act or CrPC?

A. Courts would deem them as hopelessly barred by limitation and dismiss false/motivated cases

2. What if, a motivated Police Investigating officer files a false Charge sheet?

A. Since the IO will be bound to procure the Marriage application form as well as it’s annexures (Lists of Presents and No Dowry declaration) from the concerned Sub-registrar, he will NOT be able to file false Charge sheet, once the Form-A discloses No Dowry given/taken. The lack of evidence to support Dowry aspect itself removes any chances of allegations of 498A IPC, 304 IPC and provisions of DP Act, altogether.

3. What if, under such choking circumstances created by Legislature where Dowry taking or giving had to be reported, the parties decide to NOT register their marriage, after performing the marriage?

A. Such parties are left to their own fate and are left with no legal protections for their such acts. Not registering marriage after performing the marriage. They are a happy bunch, until the fateful event of arising of disputes between both the parties. Since the Government has mandated registration of all marriages, Courts shall take a narrow view at all the marriages claimed to have performed before certain date of notification of such mandate to be not valid marriages. Not giving any leeway or flexibility to parties coming to Court.

4. What if, Government can step in and make some stringent rules?

A. Alternatively and accommodatingly, Legislature can mandate all institutions of Marriage across religious as per their Laws, to report all marriages performed at their institutions and offices to Sub-registrar. Otherwise, no point in expecting citizens to follow the mandate of Compulsory registration of marriages and Clever citizens will bypass benevolent Laws easily, by NOT registering their marriages with Government. There is no breach of any fundamental rights here under any Articles of Constitution.

5. What if, there are no such precedents recently that say, Law should change with changing times and should reflect the sea-changes in the workings of society with such time.

A. There are recent precedents such as Striking down of 497 IPC, 494 IPC. If they can be struck down, DP Act made in 1961 can also undergo changes.

6. What if, there are no practical uses for this PIL?

A. This Act while ensuring all parties are adhering and fearing Dowry laws are left with no option but to comply with same also effectively, reduces false dowry cases filed under 498A 304B IPC and DP Act, if not brings it to zero, much to the relief of millions of Men and their families, who get routinely implicated in such false cases. This also could mean many men in armed forces can focus on their duty with out the constant nagging and panging of false criminal cases.

7. What if, a marriage is not registered, is there any issues to face? Like Nikhanama is not a valid marriage proof.

A. Passports, Visas, Joint Property Purchase, Addition to Family Ration Card, Voter ID, Aadhaar Card, child marriage, fraud, bigamy and husbands deserting their wives, women seeking their rights as wives, Universal traceability

8. What if, there are any ways to bypass tedious Marriage Registration process?

A. Notarized Affidavit+ Gazette Notification+ Property Purchase = New Identify so obtained can be used for all issues highlighted in Point 7 above.

9. What if, mandatory documents make the registration process tedious?

A. As per K. Puttaswamy judgment by Constitutional Bench of Supreme Court Aadhaar is not mandatory for registration of marriage. (1. https://indiankanoon.org/doc/116396036/ and 2. https://indiankanoon.org/doc/129590004/)

 


Additional aspects

  1. A copy of custom made book with all relevant and up-to-date Marriage, Dowry and Divorce laws be presented to both parties so that they are aware of their legal rights. I can work on this post exams.
  2. A revised Form-A is in works.
  3. Is such cross-linking of statutes allowed per law? Yes.

IRDAI may soon link motor insurance premium with traffic violations; pilot project in Delhi

Sep 07, 2019

https://economictimes.indiatimes.com/wealth/personal-finance-news/irdai-may-soon-link-motor-insurance-premium-with-traffic-violations-pilot-project-in-delhi/articleshow/71023474.cms

2. Soon, your bad road manners may increase your car insurance premium

Feb 06, 2019
https://economictimes.indiatimes.com/news/politics-and-nation/soon-your-bad-road-manners-may-increase-your-car-insurance-premium/articleshow/67862646.cms?from=mdr

 

STILL TO ADD

Want to read the final (supposedly!) version of PIL filed and withdrawn? Go here.

Posted in Judicial Activism (for Public Benefit) | Tagged Dowry Prohibition Act 1961 DP Act 2 - Definition of Dowry PIL - Effective Solution to Reduce False Dowry Cases

Gender biased Laws enacted in India under the Guise of Article 15(3) of Constitution of India

Posted on September 2, 2019 by ShadesOfKnife

The following are the complete list of gender-biased Laws (and many provisions in both Substantial and Procedural Laws) enacted in India under the guise of Article 15(3) of Constitution of India and some being continued those that were enacted even before the effective date of Constitution and even more before the Independence of India.

The thing to note is that, there are no comparable laws made to protect men and boys

Substantial and Procedural Laws of India

From Indian Penal Code, 1860 (Amended from time to time)

  1. 304B – Dowry Death
  2. 354 – Assault or criminal force to woman with intent to outrage her modesty
  3. 354A – Sexual harassment and punishment for sexual harassment
  4. 354B – Assault or use of criminal force to woman with intent to disrobe
  5. 354C – Voyeurism
  6. 354D – Stalking
  7. 354E – Sextortion
  8. 375 – Rape
  9. 376 – Punishment for rape
  10. 376A – Punishment for causing death or resulting in persistent vegetative state of victim
  11. 376AB – Punishment for rape on woman under twelve years of age
  12. 376B – Sexual intercourse by husband upon his wife during separation
  13. 376C – Sexual intercourse by a person in authority
  14. 376D – Gang rape
  15. 376DA – Punishment for gang rape on woman under sixteen years of age
  16. 376DB – Punishment for gang rape on woman under twelve years of age
  17. 376E -Punishment for repeat offenders
  18. 493 – Cohabitation caused by a man deceitfully inducing a belief of lawful marriage
  19. 497 – Adultery (– Got Struck down by Supreme Court)
  20. 498 – Enticing or taking away or detaining with criminal intent a married woman
  21. 498A – Husband or relative of husband of a woman subjecting her to cruelty
  22. 509 – Word, gesture or act intended to insult the modesty of a woman

From Criminal Procedure Code, 1973 (Amended from time to time)

  1. 125 – Order for maintenance of wives, children and parents
  2. 198 – Prosecution for offences against marriage
  3. 198A – Prosecution of offences under section 498A of the Indian Penal Code
  4. 198B – Cognizance of offence

 

From Indian Evidence Act, 1872 (Amended from time to time)

  1. 112 – Birth during marriage, conclusive proof of legitimacy

 

Gender-biased Laws

Protection of Women from Domestic Violence Act, 2005

  1. Act
  2. Rules

 

The Sexual Harassment of Women at Workplace (Prevention Prohibition and Redressal) Act 2013

  1. Act
  2. Rules

 

National Commission for Women, 1990

  1. Act
  2. Rules

 

Hindu Adoptions and Maintenance Act

  1. Act
  2. Rules
  3. Section 20

 

Juvenile Justice Act

  1. Act
  2. Rules

 


Some of the goals I set for myself here, include targeting some of the above discreetly.

 

 

 

 

 

Posted in Judicial Activism (for Public Benefit) | Tagged Gender-biased Laws Summary Post Work-In-Progress Article

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